Ochoa v. Astrue

The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. PROCEEDINGS

Plaintiff Guillermo Ochoa filed an application for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, on May 9, 2003. The Commissioner initially denied the claim on August 26, 2003. An Administrative Law Judge (ALJ) conducted hearings on June 22, 2004 and October 20, 2004. The ALJ issued a decision dated February 25, 2005, denying Plaintiff's claim. Subsequently, Plaintiff sought review by the Appeals Council. The Appeals Council declined review on December 6, 2005. A civil action followed, and the District Court reversed and remanded the matter on October 31, 2006. A remand hearing was held before the ALJ on September 24, 2007. The ALJ issued a decision dated October 24, 2007, again denying Plaintiff's claim. The matter then was appealed directly to the District Court, resulting in the current civil action.

The parties have consented to the jurisdiction of the undersigned Magistrate Judge. Plaintiff and Defendant filed a Joint Stipulation on November 13, 2008. Plaintiff asserts two claims of error. First, Plaintiff alleges that the ALJ erred by incorrectly evaluating his treating physicians' opinions. Second, Plaintiff alleges that the ALJ improperly evaluated his testimony of mental impairment. For the reasons shown below, the Commissioner's decision denying benefits is reversed and remanded for calculation of benefits in accordance with this Decision.

II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the ALJ's decision to deny benefits. The Commissioner's decision that a claimant is not disabled may be set aside when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Schneider v. Commissioner of the SSA, 223 F.3d 968, 973 (9th Cir. 2000). "Substantial evidence is more than a mere scintilla but less than a preponderance - it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995).

In finding Plaintiff not disabled, the ALJ primarily based his mental residual functional capacity assessment on the opinion of the medical expert, Dr. Peterson. [AR 561]. Plaintiff presented the opinions of two treating physicians, Dr. May and Dr. Schwertdfger. [AR 390-93, 778-81]. The ALJ rejected the opinions of the treating physicians, stating that their opinions were not supported by the objective evidence or treatment records. [AR 561].

In Orn v. Astrue, the Ninth Circuit further clarified the required analysis for various physician opinions:

"The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Lester [v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended).] Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons supported by substantial evidence in the record. Id. (internal quotation marks omitted). Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing "specific and legitimate reasons" supported by substantial evidence in the record. Id. at 830, quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Magallanes [v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).] The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); accord Thomas, 278 F.3d at 957; Lester, 81 F.3d at 830-31." Orn v. Astrue 495 F.3d 625, 632 (9th Cir. 2007).

Plaintiff's primary treatment facility was Hillview Mental Health Center. An initial assessment was conducted at that facility on July 26, 2002. [AR 217-221]. In the initial assessment, Plaintiff was diagnosed with major depression disorder and moderate panic disorder without agoraphobia. [AR 221]. Records show that Plaintiff continued treatment throughout 2002 and 2003 with one of the physicians at Hillview. [AR 205-12]. He was treated for depression, anxiety, and panic disorder. [AR 205-211].

Dr. Robin May-Davis, who was then Dr. May, became his treating physician at Hillview as of August 2003. [AR 204]. Her diagnoses in August 2003 were panic disorder and major depression. [AR 204]. In her medical source statement dated October 24, 2005, under the section "DSM-IV Multiaxial Evaluation," she stated "major depression, GAD, h/o panic d/o," which the Court understands to indicate major depression, generalized anxiety disorder, and history of panic disorder. [AR 390]. From August 2003 through March 2007, as his primary treating physician, Dr. May consistently diagnosed and treated Plaintiff for GAD and panic disorder, which were frequently accompanied by major depression disorder. [AR 400-27, 714-23, 725-42, 750-52].

In her medical source opinion, when asked "would your patient have difficulty working at a regular job on a sustained basis?" Dr. May noted, "Yes." [AR 393]. She further stated that agitation is severe if Plaintiff cannot exercise several hours each day. Also, she noted significant problems with concentration and lack of focus; Plaintiff is overwhelmed easily and reports headaches if he has to think too much. [AR 393]. Additionally, in a chart describing functional limitations, for item no. 3 noting "deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere)," Dr. May circled "frequent." Also, for item no. 4 noting "episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors)," Dr. May indicated "often or twice" to "repeated (three of more)." [AR 393].

In a chart describing functional limitations, for item no. 3, noting "deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere)," Dr. Schwerdtfger circled "constant." [AR 781]. Also, for item no. 4, noting "episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors)," Dr. Schwerdtfger indicated "continual." [AR 781].

The medical expert testified at the hearing that there was a "lack of acceptable clinical and laboratory diagnostic techniques to arrive at cognitive impairment in attention, the difficulties described, and the level of impairment expressed by Dr. Schwerdtfger." [AR 562]. The medical expert also stated that the levels of impairment expressed by Dr. May and Dr. Schwerdtfger varied in degree, and noted that Dr. Schwerdtfger presumably treated Plaintiff once or twice over the course of two months, and therefore more closely resembled a consultative examiner. [AR 562].

Also, the medical expert testified that he gave no weight to Dr. May's assessment that Plaintiff was markedly limited in concentration, persistence, and pace, because there were none of the commonly accepted psychological data that one would use to establish that level of limitation. [AR 562]. The medical expert stated that while Hillview may be a County clinic, it does have access to inexpensive tests for concentration and memory. He mentioned examinations such as WIMS and Cognistat. [AR 819]. The medical expert also testified that he has never worked as a physician in a County system in Los Angeles, or in California. [AR 821].

Although the suggested psychometric testing may have provided additionally helpful information, the pertinent question is whether the treating physicians' opinions, without any supplementary psychometric testing, were supported by other objective evidence such as to substantiate Plaintiff's claim of disabling mental impairment of generalized anxiety and panic disorder.

"Courts have recognized that a psychiatric impairment is not as readily amenable to substantiation by objective laboratory testing as is a medical impairment and that consequently, the diagnostic techniques employed in the field of psychiatry may be somewhat less tangible than those in the field of medicine." Lebus v. Harris, 526 F. Supp. 56, 60 (N.D. Cal. 1981).(citations omitted). "In general, mental disorders cannot be ascertained and verified as are most physical illnesses, for the mind cannot be probed by mechanical devises in order to obtain objective clinical manifestations of mental illness. A strict reading of the statutory requirement that an impairment [be] 'demonstrable by medically acceptable clinical and laboratory diagnostic techniques,' 42 U.S.C. §§ 423(d) (3), 1382c(a)(3)(C), is inappropriate in the context of mental illness. Rather, when mental illness is the basis of a disability claim, clinical and laboratory data may consist of the diagnoses and observations of professionals trained in the field of psychopathology." Id.

Here, both treating physicians are licensed psychiatrists working for a County mental health facility. Each of Plaintiff's visits with the treating physicians is independently documented by the facility's "M.D. Medication Evaluation / Plan," which includes the time duration and the date of service. This form documents the physician's assessment through check-boxes and by handwritten notes. Pursuant to the form, the physician assessed the following during each visit: mental status*fn1*fn2; medication compliance; signs of tardive dyskinesia; side effects; response to medication/assessment; medication plan; risk of hospitalization; need for medication monitoring; impaired community functioning; recurring psychiatric history of functioning impairment; the current diagnosis; and applicable DSM codes. [AR 192-212, 383, 400-434, 714-22, 725-31, 734-42, 749, 751].

Hillview Mental Health Center also maintained a "Physician's Orders\Medication Log" as a part of Plaintiff's file, which consisted of log sheets filled in by his treating physicians. [AR 213-16, 267-70, 384-88, 435-40, 724, 732-33, 750, 752]. Plaintiff had been on a medication regimen since at least September 5, 2002. [AR 270]. These logs note the date of the physician's order, the prescribed medication's type and dosage, and the physician's signature. The logs also note when Plaintiff was seen by the physician, but no medication was prescribed. [AR 270].

Where disability due to mental impairment is involved, the need for longitudinal evidence is vital. 20 C.F.R. part 404, subpart P, app. 1, § 12.00(D)(2). According to the Hillview records, Plaintiff took an initial assessment examination on July 26, 2002. [AR 221]. He subsequently began a regular course of treatment at this facility, and the records show a medication prescription as early as September 5, 2002. [AR 216, 270]. The records further indicate that treatment was rendered up through April 5, 2007. [AR 750]. Over the course of Plaintiff's treatment period, records of visits and treatment, such as the "M.D. Medication Evaluation / Plan" discussed above, appear to have been consistently and reliably maintained. The treating physicians, particularly Dr. May, had the benefit of observing, assessing, and treating Plaintiff at regular intervals over this period. Dr. May's opinion alone provided a longitudinal assessment of Plaintiff's psychiatric condition. [AR 600].

According to the ALJ's Decision, the medical expert found it "significant that the majority of the treatment records from Hillview are monthly appointments for medication management which simply recount expressed symptoms and medication." [AR 561]. However, this conclusion oversimplified and discounted the value of the longitudinal history provided by the totality of the treatment records.

(2) The ALJ did not properly consider whether the treating physicians' opinions should be afforded controlling weight.

As discussed above, the ALJ chose to accept the opinion of the medical expert, and rejected the opinions of the two treating physicians. [AR 561]. The Ninth Circuit has clarified the importance of treating physician opinions in determining a claimant's impairment and resulting functional limitations.

"By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians. See 20 C.F.R. § 404.1527. If a treating physician's opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling weight." Id. § 404.1527(d)(2). If a treating physician's opinion is not given "controlling weight" because it is not "well-supported" or because it is inconsistent with other substantial evidence in the record, the Administration considers specified factors in determining the weight it will be given. Those factors include the "[l]ength of the treatment relationship and the frequency of examination" by the treating physician; and the "nature and extent of the treatment relationship" between the patient and the treating physician. Id. § 404.1527(d)(2)(i)-(ii). Generally, the opinions of examining physicians are afforded more weight than those of non-examining physicians, and the opinions of examining non-treating physicians are afforded less weight than those of treating physicians. Id. § 404.1527(d)(1)-(2).

Additional factors relevant to evaluating any medical opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the record as a whole; the specialty of the physician providing the opinion; and "[o]ther factors" such as the degree of understanding a physician has of the Administration's "disability programs and their evidentiary ...

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